18 Ill. 252 | Ill. | 1857
Among other defenses, the defendant relies upon the statute of frauds.
Except so far as the application of the statute may vary them, the principles laid down in the cases of McConnell v. Brillhart, 17 Ill. R. 354, and Esmay v. Negus et al., 18 Ill. R. post, are applicable to and must govern the questions of like character in this case.
The position so strongly insisted on here, that the acceptance must be also in writing, else the obligation is not mutual, inasmuch as each party may not be able to enforce it specifically, was considered and disposed .of in that case. We do not regard the question as open to discussion, considering it settled by the current and weight of authority in favor of the validity of a contract, under the statute of frauds, when signed by the party to be charged therewith, though not signe'd by the other party. We may refer to some additional authorities here. 14 John. R. 484; 16 Wend. R. 465; 9 Ves; Jr. R. 234, 351; Seton v. Slade, 7 ibid. 265, and note e.; 2 Bingh. N. C. R. 735 (29 Eng. C. L. R. 469); 1 Sugd. Vend. 133, clause 7; 5 Sand. R. 101; 15 Eng. Law and Eq. R. 376; Chit, on Oont. 70; 3 John. Cas. 61; 1 Greenlf. Ev. Sec. 268.
The decision of Lord Redesdale in Lawrenson v. Butler, 1 Scho, and Lef. R. 13,18, has been repeatedly overruled, and so of the case of Champion et al. v. Plummer, 4 Bos. and Pull. R. 252. Lord Ch. Jus. Edan did not approve the former in Huddleston v. Briscoe, 11 Ves. Jr. R. 592, but simply declined to discuss it in that case. The matter seemed to be rather an accidental remark than a decision in Gaunt v. Hill, 1 Stark. N. P. R. 10 (2 Eng. C. L. R. 15). But the rule is too firmly settled, by too many well considered cases, to be shaken by the above decisions.
But there must be a simple acceptance, without varying the terms, and the other party ought to have due notice of that acceptance. 1 Sugd. on Tend. 117, and note 1, 124-25; 1 Parson on Cont. 400 (3 Eng. C. L. R. 450).
Here are circumstances, under which we should expect and require evidence of a written acceptance—not indeed because a parol acceptance would not bind both parties'—but because it might be impossible to show such acceptance within a reasonable time, where propositions, by letter, are sent great distances by mail, and no other mode is left of returning an answer of acceptance. In some cases, the propositions require a written acceptance, and this, like any other term or condition, must be accepted as made. These circumstances explain some of the cases, that would otherwise appear to require written acceptances as necessary to the validity of the contract. Gaunt v. Hill, 1 Stark. R. 12 (2 Eng. O. L. E. 15).
While a parol acceptance of a written offer or contract may be good—and parol evidence may be resorted to, for ascertaining the identity of the party, and of the property, etc., yet the contract itself cannot be partly in writing and partly in parol, but the writings must contain the parties, the terms, price and a description of the property on their face, or by reference. Esmay v. Negus, 18 Ill. R. post g McConnell v. Brillhart, 17 Ill. R. 360, and authorities; 1 John. Ch. E. 273; 1 Greenlf. Ev., Sec. 268 ; 18 John. E. 297; 3 ibid. 210; 16 Wend. E. 28; 1 H. Harnp. E. 157; 4 Barn, and Aid. E. 595 (6 Eng. O. L. E. 616) ; 3 Brod. and Bingh. E. 14 (7 Eng. O. L. E. 328).
It would be difficult for any one to draw up the necessary writings, in detail, to carry into effect the proposition contained in defendant’s letter of 15th September. It is true the most essential terms are in it. But parties might well differ about the bond and mortgage, whether interest was payable semiannually, annually, or at the end of the credit—about the kind, and value of improvements to be made, and within what time—and whether the brokerage of two and a half per cent, was to be a deduction from the price. Some of them, a court of equity would, doubtless, enforce as in the usual course of business of that character; others present difficulties of a much more serious nature.
But waiving all objection to the proposition on these grounds, we think the terms were not accepted. Plaintiff’s note of 17th September was conditional as to the faet of acceptance. Bather than have certain persons who would not improve the lots, he would buy, and in case such should offer to buy, he might be considered as accepting. Should others want to buy and would take his lot in at a proportionate value, he would rather sell. There are too many contingencies, and no one could tell from the letter, without inquiry as to the happening of the events referred to, whether he had or had not accepted. It is not such simple acceptance as would enable the defendant to sue upon.
When the parties afterward met, we find them differing about the details to be arranged upon the basis offered in the letter—and this difference resulted in a mutual abandonment of the negotiation—with crimination and recrimination of each other as having backed out from the proposition. Yet each seems to have endeavored to draw out the details from that base, with an honest purpose to arrive at a result. Even the amount became a subject of dispute, when the equivalent of $600 per foot was sought to be gained, by increase of the principal at six per cent.
We have not gone into the figures to ascertain whether the plaintiff was right in his amounts, and his offer of title papers proper, because we are of opinion that the proposition itself was too indefinite for the court to enforce, without making a bargain for the parties, and such as it was, it was not simply and unconditionally accepted.
If there were no other difficulty in detailing these general terms, it would be impossible for the court to fix upon the character and cost of the improvements to be made. What shall be the kind, style and value ? one or twenty thousand ? Upon this depends very much the mortgage security.
Decree affirmed.